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HomeMy WebLinkAbout1987-1937.MacDonald.89-02-077 ‘. _- : EMPLOVtiS cJEL.4 COURDNNE DE LoONT*RIO C$lMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (2. MacDonald) Before: For the Grievor: Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer For the EmDlOYer: Rearinus: A. Sarrett J. Solberg J. Cowan E. ShiIton-Lennon Counsel Caoa:luzzo, Hayes Barristers and So , Lennon ,licitors Vice-Chairperson Member Member #.B. Furanna Co-nrdinator - Staff Relations Ministry of Natural Resources March 21, 1988 November 3.4, 198R November 15, 1908 =. -l- DECISION This grievance involves the interpretation of provisions new to the Collective Agreement in 1985, relating to job security for seasonal employees. The facts are not really in dispute. The grievor is a Resource Technician 2 (R.T. 2) who has been employed seasonally by the Ministry of Natural Resources since 1981. His duties involve tree planting, site preparation, boundary marking, and recording and compiling information about the state of the forest. While the work is called seasonal, in fact there are duties to be performed by R.T. 2's 12 months of the year. The Ministry's fiscal year starts April 1st and ends March 31st of the succeeding year. The Ministry considers the early spring to be the commencement of the season, because that is when tree planting begins. Many projects the Ministry engages upon are dependent upon funding. As the high spring and summer season concludes, funding may become available and jobs can be performed in the fall and winter as well. Seasonals, such as the grievor, are given time-limited contracts, but may be laid off during the term of their contract if their job is completed or funding dries up. Alternatively, contracts are often extended beyond the termination date if the reverse situation arises. The gr.ievor's record of employment from i -2- 1981 onward shows that he has had several contracts commencing in the spring, which are sometimes extended into the fall. In some years, he has been recalled after the expiration of his contract and given a new contract in the fall and/or winter. In 1981, the Grievor fell out of a tree and injured his ankle. Surgery ensued and as a result he was not able to work the 1982 season. Thereafter, he continued on whatever contracts were offered to him until the winter of 1987. Over the years between 1982 and 1987 it became apparent that the grievor's surgery had not been very successful. His ankle was deteriorating and further surgery was recommended. Hoping for the best, the grievor put off this surgery until the spring Of 1987 when he dec'ided that his ankle was simply too painful and disabling for him to effectively continue with his work and his northwoods lifestyle. This disability was known to his supervisors and sometimes discussed with them. In March, 1987 the grievor decided to have the surgery and it was scheduled for April, 1987. His doctor told him that as a result of this surgery, he would not be able to bear his full weight for three months, and consequently could not work in the field, although, he could have worked at an office job once he was in his walking cast. Mr. MacDonald mentioned the surgery to his supervisor, Mr. Stewart, in March after he had made the -3- arrangements. He told Mr. Stewart that he would be unable to do field work for three months, but hoped that they might find some office work for him. Mr. Stewart told him he could make no promises about the office work. Mr. Stewart also told him that he might have been wiser to schedule his surgery during the winter months when there wasn't so much work for R.T. 2's. The grievor replied that he felt it would be too difficult to get around in the winter in Blind River on a walking cast and to perform the woodcutting and other chores required of his lifestyle in the winter. So the grievor had his operation and was able to bear his full weight by July 21st. At that time, he telephoned Mr. Stewart to tell him that he was available for work. There was no work available then, but Mr. Stewart said he would keep him in mind. On or about August 7th, Mr. MacDonald went into the Ministry office and was told by Mr. Stewart that a short-term contract was available for him. He was also told that he must submit an application form for the job due to a new policy regarding seniority. The grievor submitted his application and was awarded the job. Shortly thereafter, Mr. MacDonald was advised that because he had been unavailable for work in April, 1987, he had lost all of his seniority rights pursuant to the - 4 - Collective Agreement and must start afresh as a probationary employee. Be was paid a step 2 wage rather than a step 3 wage that he would have been entitled to had his seniority rights not been taken from him. And so this grievance arose. The relevant provisions of the Collective Agreement which govern Mr. MacDonald's situation are reproduced below. DEFINITION 3. 17 A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full-time position in the unclassified service in a ministry. For purposes of this definition full time means a minimum of thirty-six and one-quarter (36 l/4) or forty (40) hours per week, as applicable. PROBATIONARY PERIOD 3.18 The probationary period for a seasonal employee shall be two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each, worked in consecutive years in the same position in the same ministry. SENIORITY 3.19.1 A seasonal employee's seniority within a ministry will accumulate upon completion of his probationary period and shall include: (a) all hours worked as a seasonal employee at the straight-time rate: -5- (b) periods of authorized paid leave in accordance with Section 3.31, Attendance Credits and Sick Leave. 3.19.2 A seasonal employee will lose his seniority when: (a) he voluntarily terminates his employment; (b) he is dismissed (unless such dismissal is reversed through the grievance procedure); (c) he is absent without leave in excess of ten (10) consecutive working days; (d) he is unavailable for or declines an offer for re-employment as provided in Section 3.20 (Job Security), or (e) he ceases to be in the employ of the ministry for a period of more than twelve (12) months. JOB SECURITY 3.20.1 Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the' following season on the basis of seniority. 3.20.2 Where the employer reduces the number of seasonal employees prior to the expiry date of employment specified in the contracts of employment, seasonal employees in the same position shall be laid off in reverse order of seniority. 3.20.3 A seasonal employee is responsible for advising his ministry, in the manner established by his ministry, of his current phone number and address and is responsible for the accuracy and completeness of the information provided.. The employer says that the most relevant provision affecting the grievor is Article 3.19.2 (d), specifying that a - 6- seasonal employee loses his seniority when . . . "he is unavailable for or declines an offer for re-employment as provided in Section 3.20 (Job Security)". It is not disputed that no offer of employment was made to the Grievor in April, 1987. Management said that it did not make such an offer because it knew full well that the grievor was not fit for work. The Union says that the grievor did not decline an offer for re-employment in April, 1987, and therefore, should not have lost his seniority. The issue is one of grammatical interpretation of the relevant clause. What is the object of the word "unavailable". Does it refer to a person being unavailable for work, or does it refer to a person being unavailable for .an offer of re- employment? The Ministry has interpreted this Article 3.19.2 in policy and procedure memos distributed to personnel and management staff in the Ministry. One policy/procedure issued by Personnel Services in August, 1986, explains the re-call procedure in detail and sets out the following admonitions and guidelines: "If the Ministry is unable to contact the employee for the purpose of recalling him, the employee may lose his i -7 - I 2' seniority". . . "Three weeks prior to the commencement of work in the seasonal position, the Ministry should ensure that all employees with re-call rights to available seasonal jobs have been advised of the starting date for their job. Employees who have not contacted the ministry or been advised of their date of re-call, should be contacted by the Ministry. If the Ministry is unable to make contact by telephone, a telegram or hand delivered letter should be sent to the employee advising him to contact the Ministry within forty-eight (48) hours. Managers may select any method of written communication that will provide written proof of delivery or attempted delivery. When the employee responds he should be advised of his starting date". Another policy/procedure memorandum issued at the same time states: "The major thrust of these changes to the Collective Agreement is to secure for these employees rights to on-going employment and enhanced benefits". The employer took the position at the hearing, although it was not borne out by the evidence, that the grievor was well aware that he would lose his seniority rights by schedulling his operation for April. The employer, in making its decision to strip Mr. MacDonald of his seniority rights, was at all times under the impression that Mr. MacDonald knew the consequences of what he was doing in April. Although everyone seemed to think that it was Mr. Stewart who had informed the grievor that he would lose his seniority rights by having the operation when he did, in fact Mr, Stewart could not recall any discussion about seniority rights before the operation, nor in i ? / ,,’ - 8 - fact could he confirm that he was aware himself that Mr. MacDonald might lose his seniority rights by having the operation when he did. In retrospect, and after much discussion between Union and Management representatives, it was concluded that Mr. MacDonald ma have been in a position to apply for a leave of absence without pay during the three month recuperation period, had he applied for it while he was working in March, and prior to the surgery. Of course up until this time no seasonal employee had ever been granted leave of absence without pay. But, subsequent to the discussion which was engendered by the grievor's case, another seasonal employee was granted a leave of absence without pay during a contract period, due to an injury sustained off the job. Some evidence was led by the employer to attempt to prove that the grievor knew what he was giving up when he scheduled~i his surgery, but we find that evidence to be vague and inconclusive and accept the grievor's evidence that he had no idea he would lose his seniority at the time he schedulf+d,: and in fact underwent, his operation. Having already-observed that the Collective Agreement language was new, and that the meaning of Article 3.19.2 (d) is capable of two interpretations on its face, and that this - 9 - Article has not been interpreted by any previous panel of this Board, we certainly would not charge Mr. MacDonald with the knowledge of a proper interpretation of it. In construing Collective Agreement language affecting employees)seniority rights, we are guided by the principle that those rights should only be affected by very clear language in the Collective Agreement concerned, and that we should construe the Collective Agreement with the utmost strictness whenever it is contended that an employee's seniority has been forfeited. Returning now to Article 3.19.2 (d), and construing it strictly in favour of preserving seniority rights, (and we might add in line with Ministry policies and procedures) we have concluded that the word "unavailable" in that Article relates to unavailability for an offer of re-employment. It was not disputed that at all times the Ministry had Mr. MacDonald's current address and telephone number and could have made an offer of re-employment to him. As no offer of re- employment was made, none was declined, and the grievor should not have lost his seniority. Accordingly, the grievance is allowed and the grievor's seniority is restored to him. In addition, he shall be paid - 10 - the step 3 wage increase he was entitled to for his contract commencing August, 1987, and any extentions or subsequent contracts thereafter. We will remain seized of jurisdiction in this matter in the event there is any difficulty implementing the award. DATED at Toronto, this 7th day of February, 1989. J. SOLBERG, Member 3